Monday, June 23, 2014

That is the headline to our Indiana Attorney General's long opinion piece published Sunday in the Gary Post-Tribune. Some quotes:

As state government’s lawyer, I don’t make the laws but I have an obligation to defend the laws passed by the people’s elected representatives in the Legislature. My office defends Indiana statutes from curent legal challenges in court, but we also must anticipate future challenges. By participating in amicus briefs in other states’ lawsuits, we both sharpen Indiana’s legal arguments in preparation for our own later cases and ensure that our views are understood by the judges who create the precedents that may guide — or even control — our future cases. Filing amicus briefs to explain a state’s legal interests is intrinsic to the job description of a state attorney general.

Cooperating with AG’s offices in other states, my office since January 2009 has authored or co-authored 29 amicus briefs that other states joined, or signed on to; and we joined another 113 briefs that other states authored. Of the briefs Indiana participated in at the U.S. Supreme Court, 34 were filed at the “cert petition” stage, where justices consider whether to accept an appeal from a lower court; and another 79 were filed at the “merits” stage after the court accepted a case. The rest were filed with other courts.

Staying in regular contact with our state AG counterparts, my office participates in briefs where states have strong common interests. Since 2009, approximately one-sixth of briefs were filed in cases involving the relationship between the federal government and states, as it’s important for states to raise questions if federal agencies exceed their authority. Approximately one in 10 briefs involved consumer protection and environmental laws impacting state enforcement authority. The largest group, one in four, involved criminal law. The vast majority of all criminal charges are filed by prosecutors at the state level, but many of the most serious state criminal cases eventually make their way to the federal judiciary on issues involving defendants’ constitutional rights to a fair trial. * * *

In my office, drafting and reviewing briefs is handled by Solicitor General Thomas M. Fisher, who has argued three cases before the U.S. Supreme Court and has written briefs in several more. Our salaried attorneys don’t charge billable hours and amicus work is factored into our budget the Legislature approved in advance.

Indiana should not stand silent as the important legal issues of our time are decided. By authoring or joining amicus briefs, our state government’s voice can be heard on fundamental issues even if we are not parties to a case. My office will continue to file and join them when they serve the interests of our state. [emphasis by ILB]

ILB: A few points on the opinion piece:

First: "Our state government's voice" - The office of attorney general is not a constitutional office like the Governor, the General Assembly, and the Courts. It is created by statute. I do not find any provision in constitution or statute that names the attorney general as "our state government's voice." Nor I do not see see any statement in the opinion piece that these amicus briefs are filed at the direction of Indiana's governor. The governor is our state's chief executive.

Second: According to the figures provided in the opinion piece, the AG's solicitor general's division has participated in 142 amicus briefs around the nation since Zoeller took office in 2009.

That is nearly a dozen-dozen (or more than seven-score). But we know little about them, other than that at least 29 of the amicus briefs were crafted in the Indiana AG's office, using state resources.

Five years ago, in 2009, the ILB had several entries under the heading "Who should decide Indiana's position on national legal issues? Who should know?." The ILB requested of the AG's office a list of the amicus briefs his office had filed. As it turned out, the AG's office was easily able to produce lists from both Zoeller's 2009 term and Carter's 2007-2009 terms. However, neither this information nor any updated information appears on the AG's website, or that of his Solicitor General division. The opinion piece from this weekend is the first updated, compiled information of any kind the ILB has seen in the past five years. At a minimum, the 29 amicus briefs authored in Zoeller's office should be available online via the AG's website, along with timely future updates.

Third, according to this July 29, 2005 ILB post, the office of solictor general was created administratively by then-AG Carter in 2005:

Attorney General Steve Carter has named Special Counsel Thomas M. Fisher to the new position of Solicitor General. The solicitor general will be assigned specific cases of constitutional challenges as well as other cases with issues of vital interest to state government. The solicitor general will also review and make recommendations to the Attorney General on the state's participation in filing or signing amicus curiae, or "friend of the court," briefs.

The description does not say that the AG's view of "our state government's voice" about social issues in other states should be heard and financed with Indiana tax dollars. But in recent years the sole purpose of many of the 29 amicus briefs authored in the AG's office and filed in jurisdictions around the country has been to defend prohibitions against same-sex marriage in other states (sometimes even where a state's own elected officials have opted not to appeal a federal judge's ruling against that state's same-sex marriage prohibition).

For more of the same, from other attorneys, see this ILB post from Aug. 14, 2013, and this one from May, 16th, 2014, quoting op-eds by Bill Groth and Sheila Suess Kennedy, respectively.